NOVEMBER 21, 2007 SUPREME COURT OF KENTUCKY DECISIONS (Vol. 2007:57)


PUBLISHED (SCOKY)

CUMMINGS V. PITMAN
CIVIL PROCEDURE:  Personal jurisdiction (long arm statute)
2005-SC-000861-DG.pdf
PUBLISHED: REVERSING AND REMANDING
OPINION BY LAMBERT
DATE RENDERED: 11/21/2007

Cummings appeals COA's decision affirming the TC's determination that it lacked personal jurisdiction over Andrew Boose, a nonresident New York attorney, on the claims relating to his role as trustee of a trust agreement he had drafted for his client and Cummings' mother, Betty Kern Miller. Miller was the only child of Jerome Kern, a renowned composer and Oscar winner, and inherited the rights to her father's intellectual property upon his death. Miller moved to Danville and became a client of Defendant Boose in 1991 for the purpose of managing her property rights and numerous royalty agreements. Upon the advice of Boose, Miller had him draft a trust agreement to handle the disposition of the royalities and copyrights upon her death. The trust named Miller as grantor and Miller as well as Boose as co-trustees. Upon Miller's death in 1996, Boose continued to manage the trust as sole trustee and now the sole holder of all legal rights to the trust intellectual property. Another Defendant, Attorney John Brooks Pitman of Danville, was appointed executor of Miller's estate and from mid 1997 to mid 2002 transferred over $3.1 million dollars in literary property royalties from her estate to Boose as sole trustee pursuant to the terms of the trust agreement. Cummings filed suit in April 1998, and included claims against Boose in both his individual capacity and his role as trustee of the trust by arguing that Miller suffered from diminished capacity and that Boose exercised undue influence over her by having her execute a codicil to her will that transferred all legal rights to the literary works to the trust over which he had sole authority and control. In response, Boose denied the allegations and argued that there was a distinction between the claims against him in his individual capacity (relating to his services as Miller's attorney) and the claims against him as trustee, and that he did not have sufficient contacts with Kentucky in his trustee role to render personal jurisdiction over him pursuant to the long-arm statute (KRS 454.210). The TC agreed and dismissed the claims against Boose as trustee. Cummings appealed and the COA affirmed, holding that as trustee Boose had not purposely availed himself of the privileges of acting in Kentucky. Cummings again appealed and the SC granted review.

The SC ultimately determined that their review of the relevant statutes, case law and Boose's continuing course of conduct of record made it impossible to distinguish between Boose's activities as an attorney versus those as trustee. The SC highlighted the personal visits Boose made to Miller in Kentucky prior to her engagement of his services and subsequently at the time of Miller's execution of the trust agreement. Boose also had numerous telephone conversations and exchanged letters with Miller over the course of his representation of her, corresponded with Attorney Pitman (before Miller's death) about Kentucky estate law as well as drafted over 90 letters to Executor Pitman following her death concerning distribution of estate funds to the trust. Boose was even one of the two required attesting witnesses to Miller's execution of the trust agreement. The SC disagreed with Boose and the COA that the only act he committed as trustee prior to Miller's death was the trust agreement signing, instead noting that the clear language of the agreement stated that it became effectively immediately as a revocable, inter vivos trust and not later once funded upon her death. The SC noted that this so-called dry trust still imposed fiduciary duties upon the trustees the moment it was created.

The SC then compares Boose's activities of record to the legal requirements of Kentucky's long-arm statute in an effort to determine whether exercising personal jurisdiction over Boose for all claims violates constitutional due process. Importantly, the SC declared that they will continue to employ the 3-prong test set forth in Wilson v. Case, 85 S.W.3d 589 (Ky. 2002) to determine the outer limits of personal jurisdiction, always being mindful of the US Supreme Court's overarching requirement of fair play and substantial justice. Upon conducting such an analysis in the present case, the SC appeared to have little trouble in unanimously concluding that Boose's actions, no matter what role attributed to, demonstrated a voluntary willingness to avail himself of the privilege of acting within the forum state and went well beyond merely "administering" Miller's trust. The operative facts of the controversy clearly related to actions that occurred in the forum state, and the exercise of jurisdiction over Boose in both of his capacities is reasonable. The SC concluded, "The facts alleged by Ms. Cummings show a course of conduct by Mr. Boose beginning with his representation of Ms. Miller, continuing with his planning of her estate and trust, through his appointment as trustee of the Miller trust and culminating in alleged conflicts of interest and claims of "a scheme for acquisition of ownership" of the decedent's property. This course of conduct established the requisite minimum contacts with the Commonwealth of Kentucky such that the Boyle Circuit Court was authorized to exercise personal jurisdiction over Mr. Boose as trustee via the Kentucky long-arm statute, KRS 454.210."

Chad Kessinger
Schiller, Osbourn, Barnes & Maloney

HUNSAKER V. COM.
CONDEMNATION:  REPAYMENT AND SUBSTITUTE PARTIES' OBLIGATION
2005-SC-000974-DG.pdf
PUBLISHED: AFFIRMING
OPINION BY SCHRODER; SCOTT DISSENTS BY SEP. OP.
DATE RENDERED: 11/21/2007

A condemnation action was brought against Mildred Hunsaker. The trial court entered an interlocutory order granting possession to the Commonwealth and setting the property value at $657,782.50. Due to the court order, Ms. Hunsaker was able to withdraw this amount paid to the court, which she did. The Commonwealth filed exceptions to the Commissioner’s report, claiming the evaluation was excessive. 

Five to six years later, after Ms. Hunsaker had conveyed her interest in the property to her daughters and had died, the daughters were substituted for Ms. Hunsaker in the action by agreed order. At trial, the jury set the value of the property at $300,000. The court’s judgment required the daughters to pay the Commonwealth the excess that Ms. Hunsaker had received, plus interest. On appeal, the daughters argued that they should not be required to pay because they had not received any of the money Ms. Hunsaker had gotten. The court of appeals held that the daughters were liable for the money because, as a general rule “when a party is substituted for another party, he takes up the litigation with all of its benefits and with all of its burdens just where the predecessor dropped it.”

The Supreme Court agreed and affirmed, holding that the daughters chose to intervene, were the real parties in interest, and must be subject to the burdens as well as the benefits of that status.

In a strong dissent, Justice Scott argued that under the condemnation statutes, compensation can only be paid to the person who owned the property at the time of the taking. Thus, he argued, it was only Ms. Hunsaker who was entitled to the money and was obligated to pay back the excess she had received. Justice Scott stated that while it is true that the substituted party must stand in the shoes of the party for whom he substituted, “he is not, however, obligated for the debts and liabilities of his parties’ predecessor, except as otherwise provided by law.” Justice Scott would have reversed and sent the case back to the circuit court to determine the extent to which the judgment exceeded the value of the property the daughters received, because the value of what they received is the only amount for which the daughters should be liable.

By Sam Hinkle

WRIGHT V. COM.
CRIMINAL: Directed Verdict, Instructions
2006-SC-000509-MR.pdf
PUBLISHED: AFFIRMIN G
OPINION BY SCOTT
DATE RENDERED: 11/21/2007

SC affirmed Defendant's convictions and 40 year sentence for first-degree robbery and criminal attempt to commit murder. White was not entitled to a directed verdict of acquittal on the attempted murder charge. Because trial counsel failed to renew his motion for a directed verdict at the close of all the evidence, CA reviewed the issue under the palpable error standard. The facts show that White did fire his gun in the general direction of Hubbs several times. While two of the bullets missed Hubbs by a wide margin, one of the bullets hit him. White's repeated firing of his pistol was "a substantial step in a course of conduct planned to culminate in his [murdering Hubbs]." KRS 506.010. Additionally, since one of the bullets actually hit Hubbs, a jury could reasonably find that White had the specific intent to kill Hubbs. Thus, there is nothing remotely close to palpable error here. Next, while the TC's instruction presupposed a pistol was a deadly weapon, any error was harmless. In this matter it is beyond question that the jury would have found the pistol carried by White to be a deadly weapon.
Digested by Scott C. Byrd
www.olginandbyrd.com

 

COM. V. GADDIE
CRIMINAL:  Sentence Modification
2006-SC-000575-DG.pdf
PUBLISHED: 
OPINION BY MINTON; NOBLE NOT SITTING
DATE RENDERED: 11/21/2007

SC affirmed CA's finding that the district court did not have jurisdiction to increase the Defendant's underlying term of prisonment in conjunction with a referral to drug court more than ten days after imposition of sentence despite the Defendant's consent. SC held that (1) under CR 59.05, the district court was without power to amend the final judgment over eight months after its entry to increase Gaddie's term of imprisonment from 180 days to twelve months, and (2) referral to drug court was not a reason of extraordinary nature under CR 60.02(f) that would allow the district court to amend the final judgment.
Digested by Scott C. Byrd
www.olginandbyrd.com

 

W.D.B.  (A CHILD UNDER 18)  V. COM.
FAMILY LAW:  Infancy defense in Juvenile Code
2006-SC-000937-DG.pdf
PUBLISHED: AFFIRMING
OPINION BY MINTON; SCHRODER DISSENTS IN PART, CONCURS IN PART WITH SEP. OP.
DATE RENDERED: 11/16/2007

SC affirmed the COA and held that because Kentucky Unified Juvenile Code, Kentucky Revised Statutes (KRS) Chapters 600 to 645 is comprehensive in scope and rehabilitative in purpose, its enactment extinguished the infancy defense in proceedings under the juvenile code. Since the enactment of the Kentucky Unified Juvenile Code, the common law presumption that a child lacks criminal capacity is no longer necessary.

RAMSEY V. SAYRE CHRISTIAN VILLAGE NURSING
WORKERS COMP:  Statute of limitations for reopening claim
2007-SC-000052-WC.pdf
PUBLISHED: AFFIRMING
OPINION BY COURT; LAMBERT DISSENTS BY SEP. OP.
DATE RENDERED: 11/21/2007

In the workers compensation appeal applying the statute of limitations in reopening a claim, the SC affirmed the COA and held the claimant knew of her depression during the initial proceeding and because she did not assert she was entitled to medical benefits for the depression until more than two years after the original award, the ALJ did not err in dismissing that portion of her claim at reopening.KRS 342.185(1) and KRS 342.270(1) require a claim to be filed within two years after a work-related accident or the termination of voluntary income benefits, whichever occurs last, and require all known causes of action to be joined to the claim or be waived.

APPALACHIAN REGIONAL HEALTHCARE, INC.  V. HON. EDDY COLEMAN
WRITS:  PROHIBITION PENDING JUDICIAL RECUSAL
2007-SC-000324-MR.pdf
PUBLISHED: REVERSING
OPINION BY NOBLE
DATE RENDERED: 11/21/2007

The Supreme Court of Kentucky reverses the Court of Appeals' denial of a petition for writ of prohibition in this recusal case. 

The underlying case involves medical negligence and fraud. It was eventually assigned to Judge Eddy Coleman of Pike Circuit Court. Judge Coleman set the case for a hearing to be held on December 15, 2006, on a motion to dismiss or change venue. On the day of the hearing two attorneys filed notice of appearance for appellant with a motion to recuse the judge because one of the attorneys was his brother-in-law. Ms. Baker's attorney received copies of the motions just a few minutes before the hearing. At the hearing, the judge orally granted the recusal motion, noting that he had not yet made any decisions in the case. His recusal decision is reflected by a handwritten order on his docket sheet, which was entered by the circuit cleark on December 21, 2006. On December 19, 2006, Ms. Baker's attorney filed a motion asking the judge to reconsider his verbal ruling and requesting an opportunity to respond to the recusal motion in writing since he had had little notice of it. On December 22, 2006, Ms. Baker's attorney also filed a motion to disqualify the judge's brother-in-law as counsel for Appellant. In an order dated January 5, 2007, Judge Coleman set both motions for a hearing on February 2, 2007. Several days later, Appellant filed the underlying writ petition with the Court of Appeals seeking to bar Judge Coleman from any further participation in the case on the ground that he no longer had any jurisdiction over the matter. The CA denied the motion. 

The S.Ct. holds that, in Hoskins v. Maricle, 150 S.W.3d 1, 10 (Ky. 2004), the court tried to "reset" the law of writs to a more stringent standard applied in older cases from which it had departed in the preceding two decades. This standard requires petitioners to satisfy one of two following tests to determine whether the remedy of a writ is even available: 1) the lower court is proceeding or is about to proceed outside of its jurisdiction and there is no remedy through an application to an intermediate court; or 2) the lower court is acting or is about to act erroneously, although within its jurisdiction, and there exists no adequate remedy by appeal or otherwise and great injustice and irreparable injury will result if the petition is not granted. The Court of Appeals relied upon the wrong standard in denying the writ. That standard erroneously presumed that the existence of an adequate remedy by appeal precluded the issuance of a writ; in actuality this is merely a factor for the court to consider in exercising its discretion in "no-jurisdiction" writ cases. The "no remedy through an application to an intermediate court" requirement simply means that a writ petition must be first addressed to the next higher court. 

Upon analysis, Judge Coleman was properly disqualified and recused, despite Ms. Baker's substantive arguments of improper notice and disqualification of the conflicted attorney, and Judge Coleman's reentry into the case would be proper only upon a showing of affirmative evidence that the conflict no longer exists and that no special judge has been appointed. CA is reversed. 

John Hamlet
Sitlinger, McGlincy, Theiler & Karem
 

NOT PUBLISHED (SCOKY) 

COM. V. LINK
CRIMINAL: Extreme emotional disturbance, adequate provocation
2004-SC-000216-DG.pdf
PUBLISHED: 1086
DATE RENDERED: 11/21/2007

ROBERSON V. COM.
CRIMINAL:  Circumstantial evidence, cross-examination
2006-SC-000025-MR.pdf
PUBLISHED: 777
DATE RENDERED: 11/21/2007

MELTON V. COM.
CRIMINAL: Commonwealth timely disclosures of information "plays with fire"
2006-SC-000080-MR.pdf
PUBLISHED: 1118
DATE RENDERED: 11/21/2007

CLEM V. COM.
CRIMINAL:  Voluntariness of confession, change of venue affidavit and showing
2006-SC-000145-MR.pdf
PUBLISHED: 609
DATE RENDERED: 11/21/2007

ROARK V. UNITED PARCEL SERVICE
WORKERS COMP:  University evaluators
2006-SC-000945-WC.pdf
PUBLISHED: 427
DATE RENDERED: 11/21/2007

LISTER V. TRANSPORTATION CABINET
WORKERS COMP: Disease and burden to show work-related
2007-SC-000023-WC.pdf
PUBLISHED: 567
DATE RENDERED: 11/21/2007

GARLAND V. H.T. HACKNET COM., INC.
WORKERS COMP: Tolling of SOL for voluntary payment of income benefits but  not vol. payment of disability payments
2007-SC-000079-WC.pdf
PUBLISHED: 784
DATE RENDERED: 11/21/2007

LYKINS ENTERPRISES INC. V. FUEL STOP REAL ESTATE
CIVIL PROCEDURE: FORUM NON CONVENIENS
2006-SC-000142-DG.pdf
PUBLISHED: 1951
DATE RENDERED: 11/21/2007

WORKMAN V. COM.
CRIMINAL: Incompetence, hearsay testimony
2006-SC-000399-MR.pdf
PUBLISHED: 769
DATE RENDERED: 11/21/2007

ATTORNEYS

2007-SC-000355-KB.pdf
PUBLISHED: 231
DATE RENDERED: 12/4/2007

2007-SC-000578-KB.pdf
PUBLISHED: 181
DATE RENDERED: 12/4/2007

2007-SC-000677-KB.pdf
PUBLISHED: 144
DATE RENDERED: 12/4/2007

2007-SC-000758-KB.pdf
PUBLISHED: 267
DATE RENDERED: 12/4/2007


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